J-S11001-18

2018 PA Super 216

DAWN CHOLEWKA AND RONALD H. 

CHOLEWKA, HUSBAND AND WIFE 

Appellants

v.

ALDO GELSO AND INGEBORG 

GELSO, HUSBAND AND WIFE

v.

RICHARD NEIDKOWSKI AND LITTLE 

RICHIE'S LANDSCAPING, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2846 EDA 2017

Appeal from the Order Entered August 2, 2017

In the Court of Common Pleas of Pike County 

Civil Division at No(s): 2013- CIV-1292

BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.

OPINION BY OTT, J.: FILED JULY 27, 2018

Ronald H. and Dawn Cholewka (collectively “the Cholewkas”), husband 

and wife, appeal from the order entered August 2, 2017, in the Pike County 

Court of Common Pleas, granting summary judgment in favor of additional 

defendants Richard Neidkowski and Richie’s Landscaping, LLC (collectively 

“Neidkowski”). The order also made final a prior order, entered September 

23, 2016, granting summary judgment in favor of the original defendants Aldo 

Gelso and Ingeborg Gelso (collectively “the Gelsos”). The Cholewkas raise 

three issues on appeal challenging the trial court’s grant of summary judgment 
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in favor of Neidkowski and the Gelsos. For the reasons below, we affirm in 

part, vacate in part, and remand.

The facts underlying this appeal are as follows. At all relevant times, 

the Gelsos owned a property located at 149 Hatton Road, Hawley, 

Pennsylvania. On March 12, 2012, they leased the property to the Cholewkas, 

as well as their daughter, Heather Cholewka, and her boyfriend, Richard 

Neidkowski. All four tenants signed the lease, agreed to accept the property 

“as is,” and agreed to make all repairs during their tenancy. Motion for 

Summary Judgment of Gelso, 6/3/2016, Exhibit A, Lease Agreement

(hereinafter “Lease Agreement”), at ¶¶ 8-9. The Cholewkas moved into the 

upstairs portion of the property, while Heather, Neidkowski and their child 

moved into the downstairs portion of the property. Sometime thereafter,

Neidkowski installed a gravel parking pad next to the asphalt driveway so that 

he would have a space to park his work truck. The parking pad was situated 

two to three inches below the surface level of the driveway. See Deposition 

of Richard Neidkowski, 12/15/2014, at 22-23. 

On October 4, 2012, at approximately 9:15 p.m., Dawn intended to take 

her dog for a walk. However, the dog immediately slipped off the leash and 

ran towards the back of the house, which was a wooded area. Although there 

was a light illuminating the front door and the back porch, the sides of the 

house, including the gravel parking pad, had no lighting. Both Dawn and 

Ronald walked to the back of the house to look for the dog. Ronald then went

back into the house to retrieve a flashlight. In the meantime, Dawn walked 
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around the side of the house where the parking pad was located. However, 

as she stepped up on the asphalt driveway from the parking pad, she tripped 

and fell, resulting in a fractured tibia. 

On August 12, 2013, the Cholewkas filed a negligence action against the

landlords, the Gelsos, followed by an amended complaint on September 26, 

2013. They alleged the Gelsos were negligent for failing to warn them of the 

dangerous condition caused by the uneven driveway and lack of lighting in the 

area. On January 16, 2014, counsel for the Gelsos filed a notice of Aldo Gelso’s 

death. No personal representative was substituted in his place. After 

submitting an answer and new matter on April 1, 2014, the Gelsos filed a 

motion for leave to join Neidkowski and the company he owns, Little Richard’s 

Landscaping, as additional defendants.1 

On June 3, 2016, the Gelsos filed a motion for summary judgment,

asserting the Cholewkas failed to establish the necessary elements of a 

negligence action. By order dated September 23, 2016, the court granted 

summary judgment in favor of the Gelsos. This Court subsequently denied 

the Cholewkas’ request for permission to appeal. See Order, January 10, 

____________________________________________

1 The trial court issued a rule to show cause why Neidkowski should not be 

joined. The Cholewkas did not respond to the rule to show cause, and, on 

April 29, 2014, the Gelsos filed a motion to make the rule absolute, attaching 

a letter from the Cholewkas’ attorney which informed them the Cholwekas did 

not oppose the joinder. See Motion of Defendants of Make Rule Absolute, 

4/29/2014, at Exhibit B. The court granted the Cholewkas’ motion the next 

day. Thereafter, on May 5, 2014, the Gelsos filed a joinder complaint against 

Neidkowski. 
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2017. On May 5, 2017, Neidkowski also filed a motion for summary judgment 

asserting, inter alia, he owed no duty to the Cholewkas. By order dated 

August 2, 2017, the trial court granted Neidkowski’s motion. This timely 

appeal followed.2, 3

All of the Cholewkas’ issues on appeal challenge the trial court’s award 

of summary judgment to the defendants and the additional defendants. When 

reviewing an order of the trial court granting summary judgment, we are 

guided by the following: 

Summary judgment is appropriate where the record clearly 

demonstrates there is no genuine issue of material fact and the 

moving party is entitled to judgment as a matter of law. Atcovitz 

v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 

1221 (2002); Pa. R.C.P. No. 1035.2(1). When considering a 

motion for summary judgment, the trial court must take all facts 

of record and reasonable inferences therefrom in a light most 

favorable to the non-moving party. Toy[ v. Metropolitan Life 

Ins. Co.], 928 A.2d [186,] 195 [(Pa. 2007)]. Whether there are 

no genuine issues as to any material fact presents a question of 

law, and therefore, our standard of review is de novo and our 

____________________________________________

2 We note the September 23, 2016, order that granted summary judgment in 

favor of the Gelsos was interlocutory and not appealable, since it did not 

dispose of all claims and all parties. See Pa.R.A.P. 341(a). However, once

the trial court granted summary judgment in favor of Neidkowski on August 

2, 2017, the September 2016 order ripened into a final order for appeal 

purposes. See McNeal v. Eaton Corp., 806 A.2d 899, 901 n.2 (Pa. Super. 

2002) (“We note that a trial court order declaring a case settled as to all 

remaining parties renders prior grants of summary judgment final for 

purposes of Pa.R.A.P. 341, even if the prior orders entered disposed of fewer 

than all claims against all parties.”). 

3 On September 1, 2017, the trial court ordered the Cholewkas to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

The Cholewkas complied with the court’s directive and filed a concise 

statement on September 21, 2017.
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scope of review plenary. Weaver v. Lancaster Newspapers, 

Inc., 592 Pa. 458, 926 A.2d 899, 902–03 (2007).

Estate of Agnew v. Ross, 152 A.3d 247, 259 (Pa. 2017). “In sum, only 

when the facts are so clear that reasonable minds cannot differ, may a trial 

court properly enter summary judgment.” Roche v. Ugly Duckling Car 

Sales, Inc., 879 A.2d 785, 789 (Pa. Super. 2005) (quotation omitted), appeal 

denied, 901 A.2d 499 (Pa. 2006).

The Cholewkas’ first two issues challenge the court’s award of summary 

judgment to additional defendant, Neidkowski. In their opening argument, 

the Cholewkas contend the trial court erred or abused its discretion in 

concluding Neidkowski owed no duty of care to them because they were all 

co-possessors of the same land. See Cholewkas’ Brief at 19. 

The Restatement (Second) of Torts defines a possessor of land as, inter 

alia, “a person who is in occupation of the land with intent to control it[.]” 

Restatement (Second) of Torts § 328E (1965).

4

 It is well-established that 

“[t]he standard of care a possessor of land owes to one who enters upon the 

land depends upon whether the person entering is a trespasser, licensee, or 

invitee.” Carrender v. Fitterer, 469 A.2d 120, 123 (Pa. 1983). In the 

____________________________________________

4 The other definitions for a possessor of land in Section 328E are not relevant 

to the facts herein. See Restatement (Second) of Torts § 328E (1965)

(defining a possessor of land as “a person who has been in occupation of land 

with intent to control it, if no other person has subsequently occupied it with 

intent to control it,” and “a person who is entitled to immediate occupation of 

the land, if no other person is in possession under” the prior definitions).
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present case, it is clear Dawn was not a trespasser at the time of the accident.5 

However, the Cholewkas maintain she was either a gratuitous licensee or an

invitee. See Cholewkas’ Brief at 21. 

Pursuant to the Restatement, a licensee is “a person who is privileged 

to enter or remain on land only by virtue of the possessor’s consent.” 

Restatement (Second) of Torts § 330 (1965). An invitee is categorized as 

either a public invitee or a business visitor. See id. at § 332. 

[]A public invitee is a person who is invited to enter or remain on 

land as a member of the public for a purpose for which the land is 

held open to the public.

[]A business visitor is a person who is invited to enter or remain 

on land for a purpose directly or indirectly connected with business 

dealings with the possessor of the land.

Id.

As noted above, the trial court concluded Neidkowski owed no duty to

Dawn because she was a co-possessor of the property in question. In the 

order granting Neidkowski summary judgment, the court opined:

In this case, [the Cholewkas] do not qualify as trespassers, 

[licensees], or invitees. [The Cholewkas] were privileged to enter 

and remain on the property, and so cannot be considered 

trespassers. [The Cholewkas] were not privileged to enter or 

remain on the property only by virtue of the possessor’s consent, 

and so cannot be considered licensees. [The Cholewkas] were 

neither invited to enter or remain on land as members of the 

public, nor invited to enter or remain on land for a purpose directly 

or indirectly connected with business dealings with the possessor 

of land, and so cannot be considered invitees. Rather, the facts 

____________________________________________

5 See Restatement (Second) of Torts § 329 (1965) (defining trespasser as “a 

person who enters or remains upon land in the possession of another without 

a privilege to do so created by the possessor’s consent or otherwise”). 
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of this case indicate that [the Cholewkas], along with Heather [] 

and [] Neidkowski, all qualify as possessors of land in accord with 

the Restatement (Second) of Torts. 

The record indicates that a single agreement between [the 

Cholewkas], [] Neidkowski, and Heather [] and [the Gelsos]

governed the lease of the property; a single document signed by 

[the Cholewkas], [] Neidkowski, and Heather []. Also, rent for the 

property was the responsibility of all signatories to the Lease 

Agreement despite any private understanding regarding 

appropriate apportionment that the signatories may have reached 

between themselves. Finally, the home on the property is a 

single-family dwelling, not a multi-family dwelling or townhomestyle development. The record indicates [the Cholewkas] 

occupied the upper level while [] Neidkowski and Heather [] 

occupied the lower level, as agreed between those lessees. 

However, the Lease Agreement failed to indicate that the upper 

and lower levels of the dwelling were separate, or considered 

separate, for the purpose of leasing the property. 

In light of these facts, this Court finds that all signatories to 

the Lease Agreement were possessors of the property at the time 

of [Dawn’s] injuries. Logic dictates that [the Cholewkas] cannot 

be both possessors of land and trespassers, licensees, or invitees 

simultaneously. 

Trial Court Order, 8/2/2017, at 5-6. See also Trial Court Opinion, 

10/31/2017, at 5-6.

In asserting Neidkowski owed a duty to Dawn, the Cholewkas first cite 

Bouy v. Fidelity-Philadelphia Trust Co., 12 A.2d 7 (Pa. 1940), in which the 

Supreme Court determined that a subtenant and his invitee, who was injured 

on the premises, were required to “look to the tenant and not the landlord out 

of possession for recovery.” Cholewkas’ Brief at 22. In that case, an invitee 

of a subtenant was killed after a building collapsed. The invitee’s husband 

sued the owner of the building, claiming it had rented the building in a “ruinous 

condition.” Bouy, supra, 12 A.2d at 8. On appeal, the Supreme Court 
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concluded the landowner, out of possession, owed no duty to the subtenant’s 

invitee because the tenant “expressly agreed to take the premises ‘as is, make 

improvements to the interior and keep them in good order and repair” in the 

lease agreement. Id. It is important to note that the only issue presented 

was whether the subtenant’s invitee could recover from the landowner. 

Therefore, the court’s statement that the invitee was required to “look to” the 

tenant for recovery was dicta. Further, unlike the facts presented here, the 

injured party was not a co-possessor of the land.

Nevertheless, the Cholewkas also rely upon the Supreme Court’s 

decisions in Matthews v. Spiegel, 122 A.2d 696 (Pa. 1956), and Stabelli v. 

Somerton Bldg. & Loan Ass’n, 23 A.2d 477 (Pa. 1942), to support their 

claim that Dawn stood in the position of a gratuitous licensee or invitee as to 

Neidkowski. In Matthews, a guest of a tenant was injured as a result of a 

defective condition in a stairway in an apartment building. See Matthews, 

supra, 122 A.2d at 697. Although the tenant’s lease did not expressly provide 

her with use of the basement where the stairway led, she was permitted, by 

the landowners, to store some of her belongings there. Further, the janitor 

of the building, who was employed by the landowners, testified he reported 

the defective condition to one of the landowners about a month prior to the 

accident, but it was not repaired. See id. 

The Supreme Court found the duty of the landowners to the tenant’s 

guest was the same as their duty to the tenant. See id. at 698. Because the 

tenant was permitted to use the basement solely for her own convenience, 
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the Court concluded she was a gratuitous licensee, and the general duty 

landowners owe to a licensee is to “refrain from willfully or wantonly injuring” 

her. Id. However, the Court also recognized an exception to the general rule: 

a landowner “is likewise liable for injury arising from a latent defect in the 

premises of which he has knowledge and of which he fails to inform the 

licensee.” Id. (emphasis omitted). Because one of the landowners knew of 

the dangerous condition for a month, and “neither repaired it nor warned the 

lessee of the danger,” the Matthews Court affirmed the verdict in favor of 

the plaintiff. Id. 

In Stabelli, a business tenant was also injured on a stairwell leading to 

the basement of the building. The Court found that while the tenant did not 

lease the basement, her use thereof “formed part of the consideration” of her 

lease, and the landowner maintained control over that part of the premises. 

Stabelli, supra, 23 A.2d at 479. Therefore, the Court determined the tenant 

had the status of an invitee toward the landowner. See id. 

Based on the holdings in Matthews and Stabelli, the Cholewkas insist 

Dawn was a “gratuitous licensee or invitee” to whom Neidkowski owed a duty 

of care. Cholewkas’ Brief at 22. We disagree. Unlike in the cases above, 

Neidkowski was not a landowner out of possession. Rather, he was a copossessor of the property, along with the Cholewkas. Our research has 

uncovered no decisions in which one possessor of land owed a duty of care to 

another possessor of land under premises liability principles. Accordingly, we 
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find no error on the part of the trial court in granting summary judgment to 

Neidkowski on this basis.

Next, the Cholewkas contend the trial court erred or abused its 

discretion in granting summary judgment to Neidkowski under ordinary 

negligence principles. See Cholewkas’ Brief at 23. Specifically, they insist a 

genuine issue of material fact existed as to whether Neidkowski foreseeably 

created an unreasonable risk of harm in constructing a gravel parking pad for 

his work vehicles. See id. at 23-24. They reiterate their initial claim that 

Dawn “was owed a duty as a gratuitous invitee or licensee,” as well as assert 

Neidkowski “altered the common area of the property” for his own benefit, 

and in doing so, created a “dangerous ‘lip.’” Id. at 25.

Preliminarily, we note that as discussed above, Neidkowski did not owe

a duty to Dawn as a licensee or invitee. Nevertheless, when no special 

relationship exists between parties, a defendant still owes a general duty “not 

to expose others to risks of injury which are reasonably foreseeable.” 

Schmoyer by Schmoyer v. Mexico Forge, Inc., 649 A.2d 705, 708 (Pa. 

Super. 1994). See also Roche, supra, 879 A.2d at 790 (“[A] duty arises 

only when one engages in conduct which foreseeably creates an unreasonable 

risk of harm to others.”) (citation omitted).

The trial court explained its ruling on this issue as follows:

First, the parties have not asserted, and no evidence has 

been presented to show, that either the parking pad or the paved 

driveway was in any way defective in construction or condition at 

the time of the injury. As such, a change in elevation where the 

pad and the driveway meet is both expected and reasonable.
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Second, the evidence in this matter indicates that [the 

Cholewkas] were fully aware of the construction of the parking 

pad and any risks which may have been associated with it. The 

parties leased the property in February, 2012. The parking pad 

was installed in April or May of 2012. [] Dawn [] fell on October 

4, 2012. [The Cholewkas], therefore, were fully aware of the 

construction of the parking pad, lived with it, and walked on it for 

approximately five (5) months prior to [] Dawn[’s] injury. 

Additionally, [] Dawn [] indicated at deposition that she was aware 

of the lip between the driveway and the parking pad. 

Third, [] Dawn [] indicated her fall took place at night, she 

failed to retrieve an additional light source before attempting to 

walk in the area in which the lip was located, and she was aware 

of poor lighting conditions in the area of her fall. 

We find[] that the risk created by the lip was not 

unreasonable in light of the properly-constructed parking pad and 

[the Cholewkas’] knowledge of the conditions at the time. 

Additionally, we find [Neidkowski] could not have foreseen 

[Dawn’s] ill-advised nighttime search for her dog in the poorly-lit 

area of the lip without the aid of a flashlight.

We hold that [Neidkowski] did not owe a duty of care to [the 

Cholewkas] because [Neidkowski] did not engage in conduct 

which foreseeably created an unreasonable risk of harm. 

Trial Court Opinion, 10/31/2017, at 7-8.

Again, we find no basis to disagree. The Cholewkas’ argument focuses 

on the fact that (1) Neidkowski constructed the parking pad solely for his own 

benefit, and (2) additional discovery could “potentially” show the construction 

was defective. Cholewkas’ Brief at 26. However, the record indicates the 

Cholewkas were aware of the construction of the parking pad, which was 

installed several months before Dawn’s accident. Moreover, they do not 

dispute Neidkowski’s account that his construction of the parking pad actually 

reduced the depth of the “lip” that existed between the driveway and the 

ground before he installed the parking pad. See Deposition of Richard 
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Neidkowski, 12/15/2014, at 58. Furthermore, Dawn knew there was no 

lighting on the side of the house, but proceeded to walk there without a 

flashlight. See Deposition of Dawn Cholewka, 3/19/2014, at 81 (Dawn 

admitted she was aware that “it was dark on the side of the house”). When 

asked if she recognized that she needed to step up to get onto the driveway, 

the following exchange took place:

[Dawn:] Did I recognize it? I would think naturally I would see 

that and would just step up onto it. 

When you say, do – did I recognize it? Do I consciously – did I 

consciously look at that and say, oh, there’s a big lip here. I need 

to step up higher? I don’t understand what you want me to say 

to that?

* * * *

Q Would you agree with me that you must have had some 

awareness of something there to cause you to want to step up, 

correct?

[Dawn:] Yeah, I’m – I guess yeah. I – it’s – let me just clarify. 

Normally there would be a vehicle parked right at that spot. I 

would not on – any other time that I may have been around the 

house, I wouldn’t have even walked in that particular spot because 

there would be a vehicle there. My husband’s vehicle was always 

parked there.

If I was to be of coming around the house, I probably would have 

walked behind his car and gone on into the house that way 

because it was very close to the edge where the – where the 

garage starts.

Id. at 64-65. Therefore, although she later tried to qualify her concession, 

Dawn admitted she was aware of the “lip” between the driveway and the 

gravel parking pad before the day she fell.
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Accordingly, under the facts of this case, “reasonable minds cannot 

differ” as to the fact that Neidkowski’s construction of a parking pad did not 

create a foreseeable, unreasonable risk of harm to others. See Roche, 

supra, 879 A.2d at 789. Accordingly, we affirm the August 2, 2017, order 

granting summary judgment to Neidkowski.

In their third issue, the Cholewkas contend the court erred or abused its 

discretion in granting summary judgment in favor of the original defendants, 

the Gelsos, when it determined the Gelsos owed no duty to the Cholewkas to 

warn them of the unreasonable risk of harm caused by Neidkowski’s 

construction of the parking pad, which Aldo Gelso had supervised. See

Cholewkas’ Brief at 27.

The liability of a landlord to his tenant for injuries the tenant sustains 

on the premises is based upon the following principles: 

(1) in the absence of any provision in the lease, a landlord is under 

no obligation to repair the leased premises, to see to it that they 

are fit for rental or to keep the premises in repair; (2) a tenant 

takes the premises as he finds them and the landlord is not liable 

for existing defects of which the tenant knows or can ascertain by 

a reasonable inspection; (3) a landlord out of possession, 

however, may be liable (a) where he conceals a dangerous 

condition of which he has knowledge and of which the tenant has 

no knowledge or cannot be expected to discover and (b) where he 

knows or should know of a dangerous condition and leases the 

premises for a purpose involving a ‘public use’ and has reason to 

believe the tenant will not first correct the condition; (4) a landlord 

of a multiple-tenanted building, reserving control of the common 

approaches, such as sidewalks, passageways, etc., or parts of the 

building common to all tenants, such as the roof and walls, is 

bound to keep such approaches and parts reasonably safe for the 

use of tenants and their invitees and a landlord becomes liable 

where he either had actual notice of a defective condition therein 
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or was chargeable with constructive notice, because had he 

exercised reasonable inspection he would have become aware of 

it.

Lopez v. Gukenback, 137 A.2d 771, 774–775 (Pa. 1958). Furthermore, a

landlord may also be found liable if “as an inducement to the execution of [a] 

lease for premises which were obviously in a defective condition, the landlord 

promised the tenant to remedy this defective condition and, in reliance upon 

that promise, a lease was negotiated.” Reitmeyer v. Sprecher, 243 A.2d 

395, 398 (Pa. 1968) (footnote omitted). Under this theory of recovery, 

[n]egligence, not simply the breach of the agreement to repair, is 

the gist of the action in tort and the agreement to repair does not 

render the landlord liable unless he has knowledge of the defect 

when the lease is executed and the agreement to repair made and 

then only when consideration can be found to support the 

agreement to repair.

Id. at 397 (footnote omitted). 

 Consistent with the above precepts, in the present case, the lease 

agreement signed, by the Cholewkas, specifically provided (a) the tenants 

were “responsible for all repair and maintenance,” and (b) they had inspected 

the premises and were taking the property “as is.” Lease Agreement, 

2/12/2012, at ¶¶ 9, 36. Nevertheless, the Cholewkas claim the Gelsos are 

liable for Dawn’s injury under one of two theories. First, they maintain the 

property had two separate apartments, and Aldo Gelso supervised the 

construction of the parking pad, which was in a common area used by both 

sets of tenants. See Cholewkas’ Brief at 30. Second, the Cholewkas insist 

the Gelsos “clearly knew of the defect, knew it was in a remote area of the 

property and poorly illuminated at night.” Id. They assert: “The risk to 
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someone walking in that area is clear and [the Gelsos] failed to inform [the 

Cholewkas].” Id.

Here, in granting the Gelsos’ motion for summary judgment, the trial 

court found that “nothing in the evidentiary record shows or indicates that the 

house is a multi-tenanted unit.”6 Order, 9/23/2016, at 7. The court 

explained:

Rather, the lease shows that all four residents signed one lease 

for the entire property as a whole. Moreover, [Dawn’s] testimony 

shows that [the Gelsos] retained no control over the driveway. 

Id. at 7-8. Accordingly, the court determined the Gelsos owed no duty to the 

Cholewkas pursuant to the multi-tenant theory. We agree.

Although the Cholewkas lived in the top portion of the residence, and

Neidkowski and Heather occupied the bottom portion of the residence, the 

lease agreement listed all four tenants as occupying one residence. Moreover, 

Ronald Cholewka admitted in his deposition testimony that the Gelsos rented 

the property as one residence. He testified that Aldo Gelso told him the home 

was “not complied to rent as a two-family house” and Gelso did not care how 

the four tenants split the rent, but that “$1600 is what [he gets] for the 

house.” Deposition of Ronald H. Cholewka, 4/16/2014, at 22-23. The 

Cholewkas provide no support for their claim that the property was a multi-

____________________________________________

6 We note that in its Pa.R.A.P. 1925(a) opinion, the trial court declined to 

address this issue because the notice of appeal was filed more than 30 days 

after it entered the order granting the Gelsos’ motion for summary judgment. 

See Trial Court Opinion, 10/31/2017, at 4. However, as noted supra, that 

order was unappealable at the time it was entered because it did not resolve 

all claims against all parties. See supra, at n.1. 
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tenant residence save for the fact that they treated it as such. Furthermore, 

we agree with the determination of the trial court that there is no support in 

the record for the Cholewkas’ claim that the Gelsos retained control of the 

driveway. See Lopez, supra. Accordingly, the Cholewkas’ assertion that the 

Gelsos owed a duty to them under the multi-tenant building exception, fails.

Nonetheless, relying again on Matthews, supra, the Cholewkas claim 

the Gelsos owed them a duty because the Gelsos knew of the defect in 

construction, which was located in a poorly lit area of the property, but failed 

to warn them of the potential hazard. Again, we find their reliance on 

Matthews misplaced. Liability in Matthews was premised upon the fact the 

owner of the building “knew of the dangerous condition [] a month before the 

accident and neither repaired it nor warned the lessee of the danger.” 

Matthews, supra, 122 A.2d at 698. However, in Matthews, there was no 

indication the lessee, or her injured guest, knew of the dangerous condition 

of the step. Conversely, here, the Cholewkas rented the entire property “as 

is” from the Gelsos, which necessarily included the asphalt driveway. Further, 

the Gelsos did not undertake to install the parking pad as consideration for 

the lease, nor were they specifically informed that the parking pad created a 

dangerous condition after it was installed. While Aldo Gelso may have 

“supervised” the installation, there is no evidence he was aware of a 

dangerous condition that was not already readily apparent to the Cholewkas. 

See Lopez, supra, 137 A.2d at 775 (holding a landlord out of possession may 

be liable “where he conceals a dangerous condition of which he has knowledge 
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and of which the tenant has no knowledge or cannot be expected to 

discover”) (emphasis supplied). Furthermore, as expressly provided in the 

lease, the tenants were “responsible for all repair and maintenance.” Lease 

Agreement, 2/12/2012, at ¶ 36. Accordingly, no relief is warranted.

While we conclude the judgments entered in this case should be 

affirmed, we agree with the Gelsos’ contention that Aldo Gelso should have 

been dismissed from the case for lack of jurisdiction after a notice of his death 

was filed, and no personal representative was substituted in his place. This 

Court’s recent decision in Grimm v. Grimm, 149 A.3d 77 (Pa. Super. 2016), 

appeal denied, 169 A.3d 25 (Pa. 2017), is controlling. 

In Grimm, supra, after one of the defendants died during the litigation, 

no notice of death was filed and no personal representative was substituted 

in his place. See id. at 81. However, the trial court later granted a judgment 

of non pros filed by the deceased party’s attorney. On appeal, a panel of this 

Court held: 

[T]he death of a party deprives the trial court of subject matter 

jurisdiction over litigation by or against the deceased until such 

time as the deceased’s personal representative is substituted in 

his or her place. We make this determination primarily based 

upon the language of the applicable rules of civil procedure and 

the case law in this Commonwealth addressing the effect of a 

lawsuit filed by or against a party who dies during the pendency 

of litigation.

Id. at 84. Concluding the lack of subject matter jurisdiction is an issue which 

may be raised sua sponte, the panel vacated the judgment against the 

deceased party and remanded the matter to the trial court “to either dismiss 
J-S11001-18

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the cause of action for want of jurisdiction or to permit the substitution of a 

personal representative in accordance with the Pennsylvania Rules of Civil 

Procedure.” Id. (footnote omitted). Nevertheless, the panel affirmed the 

orders sustaining the preliminary objections filed by the other parties. See 

id. at 90.

Pursuant to the dictates of Grimm, we conclude the trial court herein 

had no subject matter jurisdiction to enter summary judgment in favor of Aldo 

Gelso after a notice of his death was filed, and no personal representative was 

substituted in his place. Accordingly, we vacate the judgment entered in favor 

of Aldo Gelso and remand for proceedings consistent with Grimm. In all other 

respects, we affirm.

Judgment affirmed in part, and vacated in part. Case remanded for 

further proceedings consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/27/18